Saturday, January 16, 2010
Reform Suggestion re. Prorogation: Time Limit or Vote
I am loath to limit traditional prerogatives - one of the strengths of our system is its flexibility. It is not hard to imagine a situation in which a minority government had indeed concluded the vast majority of its agenda, it was the end of the Spring session, and while the House would be in recess, the other parties would be looking to engage in bad faith harassment by forcing Summer committee meetings which could be used to slander government. I'm remembering behaviour of opposition re. Sgro & supposed stripper scandal, and other such episodes when innocent ministers, whose governments had followed the proper forms, allowing inquiries, investigations, etc., were still attcked, reputations diminished, and no-one ever apologised to ministers in question, and of course damage was done, however innocent the individual. I can see why it might be fair for a government, given such behaviour, to prorogue over the Summer, instead of recessing. And I am sure there are other unconceived situations lurking, in which PM's/GG's discretion would be no bad thing.
But the fact remains, we need to guard against the example of its current authoritarian abuse.
Since a majority government could change the rules anyway, one shouldn't try too hard to come up with a mechanism that would stop them, since for it to work it would be surely be too inflexible a restriction under normal circumstances. But this reminds me of a suggestion I've made before, that such matters, as well as appointment of Officers of Parliament, ie. all those questions that should be as non-partisan as possible, build on QC example and require 2/3 majority of House, including Official Opposition. The Official Opposition proviso would be my addition, remembering Dief, Mulroney, McKenna & Campbell landslides. Occasionally, government members represent more than 2/3 of legislatures. But there can always be an Official Opposition, if the Orders are written to recognise one, even absent official party status. First, which grouping has most MPs, and, if a McKenna wipe-out, then highest percentage of popular vote. So prorogation limits could be one of those rules that can only be changed with accord of 2/3 & Official Opposition. If parties incapable of agreement on what should clearly be non-partisan rules & appointments, then Govt can call an election, as always. One would expect the political price for incalcitrance in clearly non-partisan matters would discourage such behaviour.
Rob in TO said "There may still be a good reason to prorogue for longer than 7 days, in which case it should be allowed but require some justification - and a vote in parliament." That general thrust sounds good to me: A time limit to how long House can be prorogued without House approval. Whether more or less than seven days, whether it should be X number of days or business days, I leave up to the experience and good sense of parliamentarians.
But the basic idea is sound, the PM maintains his prerogative, which, as O'Malley says, should not normally require lengthy prorogations, and if there is some valid reason for longer, the House must concur. In the imagined previous example, with the minority government at the end of the Spring, the Opposition would have to consider the matter being investigated to be serious enough to merit voting against prorogation in the full House. If they had been behaving scandalously, if it was unfounded slander over nothing, they would pay the political price of having openly voted to do so. Just as governments have suffered for unjustifiable prorogations, so the Opposition, in this scenario, would suffer for preventing a justifiable prorogation: Canadians would be wary of politicians forcing hearings over the Summer. It would be a risky move and mean the Opposition was genuinely concerned that the matter in question was of great, urgent and continuing import. And if it wished to maintain the country's confidence in its investigations, it would have to behave accordingly, with seriousness.
This is the best I can do, for now, from what I know. If others have better suggestions, they should make them known.
O'Malley's Suggestion:
I came up with what I think could be an eminently sensible proposal for the use of the prorogation prerogative by future (or, indeed, current) prime ministers: Set the maximum period of time during which parliament can stand prorogued at seven days.
The PM would retain the ability to "recalibrate" his government whenever he feels the need to do so without encroaching on the ability of parliament to do its job. The intention to prorogue could be announced at any point -- like, say, the day that the Olympic men's hockey team is being announced -- but the proclamation itself would not be signed until no more than seven days before the scheduled Speech from the Throne.
You could, I suppose, make the seven day pause mandatory, which would prevent a future prime minister from invoking it on the spot to dodge a looming confidence vote, but that would almost certainly require a constitutional amendment, and you know what a bother that can be. Plus, that would seem to come perilously close to infringing on his privilege to exercise the power to prorogue whenever he -- or she -- sees fit.
Really, though, I can't think of any compelling reason why parliament should be deliberately idled for longer than that -- outside of an already scheduled adjournment, of course, during which the Speaker retains the power to recall it if necessary, and committees can still meet should members desire to do so.
Rob in TO wrote: Posted 2010/01/07 at 2:56 PM ET
I'm with you on this. The idea that the PM can, on a whim, just stop parliament from functioning in any way for an indefinite period of time seems entirely undemocratic.
There may still be a good reason to prorogue for longer than 7 days, in which case it should be allowed but require some justification - and a vote in parliament. it's clear that this prorogation is intended to take the spotlight off of Canada's dirty laundry during the Olympics, which is a stupid (though politically expedient) reason to bring government to a halt for a few months, or even a few days. If this power can be used without justification, it will be, which virtually guarantees the power will be abused (as it is being abused now).
BSouth wrote: Posted 2010/01/07 at 3:00 PM ET
Prorogation should be the exception not the rule. If a PM wants to prorogue the GG should ask that the PM work for a minimum of 7 days with the other elected members of Parliament to work out within Parliament the issue and if it cannot be resolved and prorogation is the only recourse then that is the time for the GG to accept the request and not rubber stamp it with a YES but look for alternative government options. If the government can continue under someone else's stewardship then Parliament stays in session and a new PM is sworn in. The GG has the role to keep Canadian Parliament working and should not acquiesce to a "get out of jail free" request from the PM because he is not willing to work it out within Parliament.
Every voting Canadian should familiarize themselves with the role of the GG and the PM and of the Canadian Parliamentary system pertaining to prorogation. I suggest they read discussion paper No. 7 from January 2009 by Andrew Heard at the University of Alberta Centre for Constitutional Studies regarding the pros and cons of Harper's prorogation request from last year.
Friday, January 15, 2010
Coy O'Malley re. Dawson & Private Interest
“Private interest”
In light of my conclusion above, it is not necessary for me to consider the question of whether the Conservative Party of Canada had a “private interest” within the meaning of the Act in relation to this request. The alleged interests at issue here are the improved electoral prospects of the Conservative Party of Canada. In my view it is questionable whether those political interests are included within the meaning of “private interest” under the Act, but it is not necessary to decide that issue at this time. It is, however, an important question, and I expect to have occasion to comment further on the scope of the expression “private interest” in the near future.
Hillier & Haiti & Other Thoughts
2. If one's concern is reducing human misery/making lives better, then the cost-benefit ratio of aid & investment in Haiti, sub-saharan Africa and similar regions, far outweighs Afghanistan, since probably nowhere on Earth is costlier, on a per capita basis, than Afghanistan, for equivalent result for median or average human being in misery. Afghanistan's combination of terrain, distance, war, culture & politics make it uniquely intractable. One aid dollar goes a lot further in a, by comparison, relatively peaceful society where the help is desired by all, and there are few if any attacks, easier terrain and less intransigent culture(s). And that is only a static analysis. Given the cited factors, having spent far more to achieve an equivalent amelioration in a given average or median case of misery, there is also a far higher probability that circumstances will cause the individual's situation to regress in Afghanistan than elsewhere. So aid to Afghanistan, as opposed to Haiti, for instance, is an extremely sub-optimal use of an aid dollar in the short term, and increasingly unproductive, comparatively, in the medium to long term.
Now that's an evaluation on the premise that the goal is increasing well-being. One may claim that Afghanistan aid, though relatively unproductive, is more necessary as a matter of national security. I think that is complete tripe, for any countries other than, arguably, the USA, & maybe, just maybe, the UK (only as a consequence of Blair foreign policy, it should be noted). Even then, I'd be doubtful, but the two cases can be made. The Taliban/Pashtun nationalists have no foreign ambitions. And, as Biden argued, gunboat/gunship diplomacy, along with intelligence work, special forces' strikes, bribery, intimidation, "divide and keep unthreatening" tactics, etc., are more than enough to further weaken the already much diminished foreign terrorist forces, and keep them at bay. In fact, I would also agree with Biden and others that, starting from zero, increasing outside military force in Afghanistan quickly reaches its point of optimum utility, beyond which its utility decreases, as its increase engenders further nationalist resistance, and becomes counter-productive. Better to have fewer forces and stay on the short, more productive, increasing-utility side of the curve. Of course there will always be the odd attack outside the region, large and small, and inevitably some will succeed. Price of empire: ask French & Brits. But no Afghan-originating risk of WMD attack. Even Pakistan worst-case scenario unlikely, or anywhere, as possessors of WMDs tend to be rational actors and know any attack would lead to their base's/country's annihilation (ex: Iran's theocrats are bad, but they are not mad, if you analyse their behaviour).
So national security justification for sub-optimal aid investment in Afghanistan is unconvincing even for USA & UK (beyond what is necessary to manipulate situation), and tripe for others. Hence resources currently expended in Afghanistan would be used more productively in Haiti, sub-saharan Africa, etc., to improve people's lives, encouraging peace and security, hence promoting liberalism, that is, eventually, (better) functioning democracies & mixed economies.
NB. Trying to being coldheaded about the matter, I have not mentioned the inestimable cost of Canadian lives and casualties, which one can take as implicit in the evaluation, or, as I am inclined, of such value as to be considered on their own, in addition to any coldminded analysis of input-output productivity.
3. Haiti has been our 2nd biggest aid recipient for a bit. Good. But if we weren't in Afghanistan, we would have done still more, and be able of doing even more in a time of crisis, like now.
4. Were we not in Afghanistan, what portion of those resources would be used, where and how - would Haiti have received much more aid and would we be doing more now? Haiti would have received more, but how much more, one can't say, would depend on government of the day. Might be roughly equivalent to now, might be more. Would be at least a bit more, though. As for crisis, assuming a goodly proportion of civilian and military personnel & resources currently based in Afghanistan were in Canada, we would indeed be doing far more, right now.
5. Given resources at our disposal, we are doing well, that is, as well as can be rationally expected, in current circumstances. It is right and natural that there be criticism - it is good and necessary pressure on all authorities to do best they can. Whatever the source of criticism, desperate Haitian expats, frustrated NGOs, concerned MPs, and others, it is understandable and useful in keeping everyone on their toes. But I don't think anyone doubts the goodwill and dedication of public servants working the file. And they should be commended for their efforts.
Thursday, January 14, 2010
Essential Reading: Christopher Moore & Denis Smith
Professor Weinstock asks Mr Harper to be nicer
Daniel Weinstock, who launched the letter signed by 200 academics to protest against the proroguing of parliament, was interviewed on As it Happens last night, and he alarmed me almost as much as Mr Harper does. Now this is a professor of political philosophy, a Trudeau Fellow, an Oxford Ph.D, and so on, and he has the support of most of the constitutional lawyers and political scientists in the country. But his ideas struck me as terrifyingly blinkered, derived entirely from what happens in Ottawa today rather than from any understanding of parliamentary democracy and its principles.
In a parliamentary democracy, he explained [podcast available here], there are no checks and balances as in the American system. So the working of our system of government depends on the executive being nice, on prime ministers who restrain themselves and do not use all the powers parliamentary democracy confers on him. This is Stephen Harper's failing, he told the interviewer: he's not playing nicely with the powers he has, and we need 200 professors to ask him to put some of his powers back in the desk drawer. Be friendly, Mr. Dictator.
But if that's parliamentary democracy, why would Professor Weinstock, or anyone, give it credence? If the only restraint it offers against the abuse of executive power is the executive's modesty and self-restraint? Weinstock might as well argue that communism or fascism would have been fine except that those mean guys Stalin and Mussolini failed to restrain themselves. What kind of political philosophy accepts that you can have a lousy system of government and rely on the niceness of leaders to make it acceptable?
The check and balance in parliamentary democracy is parliament itself. In parliamentary democracies all over the world, leaders who become arrogant, or who underperform, or become policy-challenged, or get caught in scandals, or just lose their charm, are regularly, routinely, and promptly reined in or redirected, or when necessary removed. Leaders are always ambitious and rarely nice, but they are surrounded by other people who are equally ambitious and perfectly able to apply their own ruthlessness against each other.
I know it is not happening in Ottawa -- but that's the problem, Professor. Don't ask Stephen Harper to be nicer, encourage this parliament to unleash its own ambitions.
(The Weinstock letter itself, now widely published in newspaper op-ed pages, is available here.)
Update, January 13: Political scientist and writer Denis Smith comments wisely:
You're quite right to point out that the Weinstock article misses the main point about where power (potentially) lies in the parliamentary system. In both this and the last parliament, the House failed to use its power most of the time: the prime minister only acts the way he does because 307 other MPs let him get away with it. But in one crucial vote in December, the House voted 145 to 143 to order release of unredacted documents to the Afghanistan committee, and the opposition indicated that it would pursue the application of that order when the House reconvenes. The government indicated that it would not obey the order. In effect, it gave notice that it would defy the House's demand. It seems to me that it is this defiance, plus the prorogation, that turned the affair into a parliamentary crisis. The House's way to resolve the crisis, obviously, is to defeat the government in a confidence vote, and it will be in a position to do so on March 3 or 4. Hardly anyone except you, in all the recent commentary, has mentioned this elementary point.
But surely Weinstock is right to insist that the system also involves conventions of mutual restraint which the prime minister has ignored. He's done that repeatedly. He should not have asked for prorogation in December 2008; he should not have asked for it in December 2009. It's important for commentators to remind him of those conventions of restraint.
And then, as you say, the House must assure that the conventions are backed up with its sanction. Maybe the commentators don't mention this because the opposition parties have been strangely silent about the House's power as well. They need to threaten defeat in a confidence vote, and carry through with the threat in March. If they want to do it without a virtually automatic request for dissolution after that vote, they need to talk to each other about an alternative government drawn from the present House (as they did in 2008).
To restore the power of the House that you encourage, there are a whole lot of steps the parties must take. It would certainly be helpful if they could begin to speak honestly about how difficult that really will be.
Mulcair: NDP (willing) To Defeat Govt Over Anti-Democracy
CAPP: First We Take Manhat..Yellowknife!
Good News - Doctor/Specialist I'd Recommend
Tuesday, January 12, 2010
What Would Blaikie Do? Knowles? Douglas?
Sunday, January 10, 2010
Framing Coalition Question in Election: It's All About Steve
It would be better if Parliament could continue sitting because if this or any government can defy a Parliamentary Order, prorogue, and then go to the polls, then in effect they can probably evade Parliament reasserting its supremacy, and the Executive is effectively supreme. The effective two month break due to an election would dampen Parliament's vigour. And here are the real-life scenarios which will follow from an election:
1) Con majority = Affirmation of Bonapartist executive supremacy, Parliamentary inferiority, Parliamentary Order killed, death of (parliamentary) democracy - next chance to resurrect it 4-5 years hence?
2) Lib majority or plurality = Lib government, documents produced, parliamentary democracy restored to an extent, except since original outlaw executive never censured nor found in contempt, etc., Parliament never got a chance to reaffirm its authority v.-à-v. Executive. Censure might seem like pointless vengeful victors' justice, given documents production, although still right & necessary in my view, and a further complication is Harper will almost certainly resign his seat, as is likely for one or more of the other obstructionists of justice, MacKay, Day, Nicholson & Cannon.
3) Con plurality:
i) Opposition allows Cons to stay Govt, ie. maintain the confidence of the House, then they are knowingly countenancing and rewarding Con Executive Supremacy over Parliament, as Cons having refused to produce documents, and gone to election, and obtained plurality and with Opposition acquiescence, returned to Govt, they are hardly going to now obey Parliamentary Order. And the Cons, media and public will interpret Opposition acquiescence as validation for Con position, so no political momentum to enforce Order. So while technically Opposition could recommence censure-contempt etc. proceedings, in fact they could and would not. Executive supremacy & Parliamentary inferiority affirmed, even more strongly than in case of Con majority, as Opposition itself will have effectively agreed with Con position. In a Con "majority", the Cons will have won with approx 40% of vote so a majority of the population will have voted for other parties, and thus birth of noble myth of majority of Canadians voting for parliamentary democracy, only to be frustrated by electoral system, and strengthen democratic forces' position for next election, assuming we still have elections. But in Con minority govt situation, Opposition will have repudiated its own democratic principles and there will be no more argument on the matter: parliament is not supreme, executive is, and hence parliamentary democracy is dead.
ii) Opposition forms Government, enforces order.
a) The stronger the Opposition Govt (Lib+NDP>Cons) the more the consequences will resemble those in the case of a Lib majority/plurality, as the impossibility of regaining power will lead Harper et.al. to resign seats, etc..
b) The weaker the Opposition Govt - Libs+NDP less than Cons and explicitly dependent on Bloc support - the tougher the initial fight. I agreed with Chrétien's and others' judgements in this matter, well summarised by Robinson: "The very fact of having power fundamentally alters the dynamics of the political situation in favour of those who possess it.(...)Canadians might have said that they did not want a coalition, but once they had one, the situation would have changed fundamentally."
Harper & the other obstructionists might try to stay in Opposition, at first, hoping demagoguery works again, and through intimidation they would weaken the Government and cause it to splinter, thus reascending to power either through a confidence vote or another quick election, whose narrative, since a consequence of Cons intimidating Government into self-destruction and (ex-)implicit endorsement of Con critiques, would favour Cons. But if the new Government demonstrates its determination, it will win decisively, as this fight is fixed in its favour: we would be on the side of the motherhood issue of democracy as a good majority of Canadians would have voted for the parties in question, whose agenda would be democratic reform, not to say the reestablishment of (parliamentary) democracy, riding on a popular pro-democracy wave.
After two months, the Government sworn in and its legislative agenda underway, all motherhood issues, it would become clear to the Cons that there would be no instant return to power, and Harper & many of the obstructionists would resign their seats. Then the CPC would be in a long period of recriminations, and a leadership race, which would expose and heighten the hitherto repressed divisions between Reform-PC, OntGiorno-Rest, Social Conservatives-Others, etc.. As the motherhood democracy agenda moved forward and the CPC became more consumed with angry internal divisions, the Government would be in an ever strengthening position for an election some 18 months subsequent to its formation. The government parties would be that much better placed as a result of those democratic reforms, electoral reform in particular.
There would be a whole package of democratic reforms front and centre, with, among others, Parliament needing to agree to prorogations, multiparty agreement on a more liberal UK approach to voting discipline, independence of nomination to judicial, quasi-judicial & arms length bodies, reestablishing independent public service, and most crucially, electoral reform by introducing a simple preferential system. Three previous posts have summed up the essential questions, Milliken's Ruling, Precedents & Inquiry. I quote from this last post to again explain why I think simple preferential system is the only electoral reform possible:
"might I reiterate the importance of electoral reform and the fact that the only reform that could ever be acceptable to QC, given its unique position, is preferential voting, which far from penalising the Bloc, as other proposals would, might indeed aid it, a bit, as the insurance policy party in QC, in the short term, 1-2 elections, max. The change in our democratic culture as a result of preferential voting (civilised debate, hence necessarily more policy-focussed, and leading to greater respect for institutions by parties, etc.) would eventually profit smaller parties and increase desire to be part of governing coalitions, pulling folk away from Bloc. But it's fair to say that the Bloc would probably profit slightly in the first preferential election, and that's exactly why it's the only electoral reform with a chance."
That goes for any reform, under any circumstances, whatever size of governing majority, as "QC", that is nationalist QC, representing some 70% of population, would rise in revolt against any electoral change that would be perceived as a method for weakening nationalist position, ie. Bloc. Even many (most?) federalists who don't like Bloc would be leery, esp. in light of media & popular reaction. To impose an even more proportional system that would have happy consequence of diminishing Bloc influence, from federalist point of view, would seem so wrong in QC as to be one of few issues on which PQ could whip up enough support for 60%+ Yes vote in referendum, as in post-Meech. The best short summary of attitudes on this kind of issue, and English-French relations, remains Some Obstacles to Democracy in Quebec and in QC, French Canadians always remember, or continue to perceive, that "English Canadians have not really wanted it (democracy) for others", ie. Anglos' claims of needed structural reforms are really just excuses for doing down Francos (cf. single capital markets regulator, among many such examples).
The preceding analysis raises the question of how to deal with the sensitive question of a, or the, coalition. As noted in Inquiry, a coalition needing Bloc support is only necessary if the combined Lib-NDP representation is inferior to the Cons. If Lib-NDP plurality were larger than Cons', then no formal letter of support would be necessary. But obviously, there is a very real chance that Cons' might have larger plurality. Given the absolute necessity of saving (parliamentary) democracy, Opposition must take power, however that must be accomplished. Were a Bloc supported coalition prove necessary, it would be weakened from the start if framing was that Libs & NDP were contradicting stated anti-Bloc position during campaign. So how to frame question?
Answer: It's all about Steve. Harper has happily not just opened the door to this framing, but torn down the walls and ripped off the roof. By centralising everything, by making himself the centre of everything, from 2005-06 campaign onwards, by making it all about himself, to the point that before, during & after last prorogation the Con presidentialist line was that "Canadians elected Stephen Harper, not Stéphane Dion & coalition", he has opened himself to completely focussed anti-Harper framing. We know he is not a sympathetic character, even to conservatives. And great advantage of focussed anti-Harper frame is it allows us to say & intimate that most conservatives are fine fellows and we know they are as disappointed, shocked even, by Harper's mean & anti-democratic behaviour as anyone. Being focussed on Harper actually lets us be nicer to Con swing voters. You're good, he's bad, do you really want to vote for him? Harper's hoist by his presidentialist petard.
But how does this relate to coalition question? Because when asked if we Libs are contemplating a coalition, we frame it this way: "Harper must go. We're running candidates in every riding, and obviously, like every party, we'd like all our candidates to win - who hopes any of their candidates will lose? - though we know that's impossible. Like every serious national party, we're working for a majority, and failing that, as big a plurality as possible, for as strong a minority government as possible. But what is clear is Harper must go. We're hoping to accomplish that through a Liberal majority, and failing that, as strong a Liberal minority as possible, but this election is about Harper and his dictatorial tendencies. He's destroying Canadian democracy and he has to be stopped. Harper must go. Whatever it takes, he must go. So we're not hoping for a coalition, we're not planning for a coalition, but Harper absolutely has to be stopped, whatever it takes. If the numbers turn out that the only way to stop him is through some sort of agreement or coalition with other parties, so be it. Harper must go. The stronger the vote for the Liberal Party, the less we will need to make deals with other parties. Ideally, we'll win a majority. But Harper must go, and we will do whatever it takes to get rid of him. The surest way to get rid of him is to vote Liberal. Harper must go. Vote Liberal to stop Harper & start a better Canada." Short version: "Harper must go, whatever it takes."
This position is best laid out as early as possible in the campaign, before its official declaration even. By being upfront about how anti-Harper=coalition if necessary, we free ourselves to run on voting Liberal for all these other good reasons (economy, health care, environment, etc.), and remind people that the stronger the Liberal vote, the surer we can deliver, on our own.
A few months back, I said "Somewhere the a(im)moral but occasionally insightful Paul Wells wrote something along the lines that both Iggy & Harper would want to spend the next campaign talking about the other guy and not themselves". By defying Parliament, shutting down Afghan Committee and then proroguing Parliament, Harper made the next election all about himself, to an almost unheard of extent. The closest equivalents are Dief in '63, Trudeau in '79 & the ghost of Mulroney in '93. As we see with the popular revolt over the prorogation, at least 2/3 of the population is sick and tired of the jerk, and wants him gone. And by acting like Banana Republic dictator, he's placed himself in the bullseye. And as his & Cons reputation for negativity is now infamous, there's nothing they can say about any attacks. In fact, their attacks will only reinforce the fact of the prorogation behaviour. When Ron MacLean is making jokes about it on HNIC, you're in big trouble.
Harper must go. Whatever it takes, Harper must go. Repeat, repeat, repeat, when the time comes.



